Lomax & Ors v Greenslade

Under Civil Procedure Rules 1998, r 39.3, an absent party must satisfy all three mandatory conditions for setting aside a judgment: prompt application, good reason for absence, and a reasonable prospect of success. Where those conditions are met, the order will ordinarily be set aside, subject to the overriding objective. An appellate court should not permit a party to obtain indirectly, by appeal, a retrial that could not have been obtained under r 39.3. Appellate intervention in discretionary or evaluative decisions is justified only for a clear and material error of law or principle, or perversity. Fresh evidence may nevertheless be admitted where the interests of justice and the overriding objective require it.

The respondents, the deceased’s children, brought a claim under the Inheritance (Provision for Family and Dependents) Act 1975 because their father’s will made no provision for them. HHJ Bailey ordered that the appellant executor and sole beneficiary receive £69,000, with the balance divided equally among the respondents.

The appellant appealed. She argued that the trial should have been adjourned because of her mental health, that the equal awards were unjustified, that the estate had been overvalued, and that the judge had wrongly considered a draft will. The central issues were whether the absence of the appellant justified a retrial, whether the award involved an appealable error, and whether fresh evidence should be admitted.

1. The appeal was dismissed except for a limited variation to reflect fresh evidence reducing the net estate from £699,000 to approximately £636,000. The appellant retained £69,000 and the residue was to be divided equally among the respondents.

2. The principles in Bank of Scotland & Anor v Howard Pain & Ors [2011] EWCA Civ 241 were applied. The three conditions in Civil Procedure Rules 1998, r 39.3(5), are mandatory. The appellant had a potentially good reason for absence because of her mental illness, but the application was not made promptly. The first condition therefore failed. It would be wrong in principle to allow an appeal to provide a retrial based merely on absence where the r 39.3 requirements had not been met.

3. The court reviewed the refusal of an adjournment itself and rejected that ground. It considered the evidence that the trial judge had not seen, but concluded that the failure to make a prompt application remained decisive.

4. The trial judge had individually considered the financial circumstances of each claimant before concluding that equal shares were reasonable. An appellate court should not interfere with that evaluative exercise absent a clear and material error of law or principle or a conclusion that was perverse.

5. Applying the principles in Ladd v Marshall, the court admitted a solicitor’s completion statement as fresh evidence. Although it could have been produced earlier, its importance and the overriding objective justified admission. The estate accounts were not admitted.

6. The judge was entitled under section 3 of the Inheritance (Provision for Family and Dependents) Act 1975 to take the deceased’s unexecuted draft will into account. The allegation that it was forged was rejected as belated.

• High Court (Chancery Division): the appeal from HHJ Bailey’s county court judgment was dismissed save for a limited reduction in the respondents’ awards following admission of fresh evidence.